APPRAISAL OF THE DOCTRINE OF NON EST FACTUM UNDER THE NIGERIAN LAW OF CONTRACT
CHAPTER ONE:
GENERAL INTRODUCTION
This study sets out to critically appraise the rule of law with special emphasis on the doctrine of non est factum and its applications under the Nigerian Law of Contract. This is with a view to examining its benefits as a check on dishonest contract agreements, abuses by fraudulent parties and individually, the various dimensions and ramifications of non est factum and its possible relevance or otherwise for the future direction and enrichment of the country‟s legal practices. Finally, it gives recommendations as to how the plea of non est factum can be improved upon especially in the country‟s legal jurisprudence.
1.1. Background of the Study
An important principle of English Common Law is that a contract is a species of agreement whereby a legal obligation is constituted and defined between the parties to it. There are a variety of contracts which must be in prescribed form; that is, in writing or under seal. Parties to such contracts are at times bargaining not on equal basis as a result of some incapacity. At times also friends have misled each other into signing documents which are quite different from what the purport them to be. To cure ostensible fraud arising from such incapacities and deceit perpetrated by the other party to such contract and documents, the law has devised some Common Law principles to protect such disadvantaged parties. One of such protective instruments is the Common Law plea of non est factum.2 The doctrine was developed by the English courts to protect those who signed legal documents mistakenly.
Where the doctrine applies, a person who mistakenly signs a contract or deed is not bound thereby. A classic example is a blind person who executes a document after it had been incorrectly read over to him or her. The doctrine may also protect anyone who through no fault of his, has no understanding of the meaning and effects of a document but was deceived into signing it. It avails the ill, the infirm, those of low intelligence, the seriously under-educated, and those unable to understand the language of the document. In addition, the doctrine may protect those who have been tricked into signing a document. So, contracts signed under force, threat, coercion, ignorance, etc are void or voidable. Meanwhile, under the law, he who does not claim his rights has none. non est factum is a claim, or potential claim, ex post facto. The doctrine also applies where there is a grossly misleading summary of the terms of a contract or where there is perceived fraudulent misrepresentation or clear intention to it. However, people might find it difficult to hide under this law to defraud others, because, It would not protect a negligent or careless signatory, nor one who makes non-fundamental mistake about the nature of the document that he or she is signing. Again, in most cases simple ignorance about the contents of the document will not bring the doctrine into play. That notwithstanding, this doctrine has been criticized in some quarters that it provides a lacuna for fraudulent-minded people to escape judgement. This school of thought argues that the doctrine of non est factum is an umbrella to be hidden under and used as a sword against weary contracting parties. However, some learned jurists disagree here.
For instance, as aptly put by Karibi – Whyte J.S.C., in Egbase v. Oriareghan :
It must be noted that the plea of non est factum is not one through which fraud can be perpetuated. The protection offered by the law is to ensure that a person is not held bound by the terms of a document which he should not have signed, but signed due to fraud or mistake. Again, the doctrine is alleged to be limited in scope, applying only to certain categories of people in the society and to mainly civil matters. The relevance of the doctrine in present day Nigerian legal practice is also being challenged in certain quarters. The doctrine is also being viewed as ambiguous in the definition of the required degree of carefulness or negligence to invoke the plea. Some commentators are also worried that considering the high illiteracy rate in the country, not many people are really aware of their right to repudiate an almost concluded contract through this doctrine. All these raises some critical questions regarding the relevance, applicability and benefits of this doctrine in the present day legal practice in Nigeria, which is the major thrust of this study.
